Free Software Matters:
Free Government, II

As I wrote last month, we're in the middle of a quite intense
controversy in the United States over the use of free software by
government, as a result of a global movement towards public adoption
of free software--a movement that has Microsoft very worried indeed.

Now that hundreds of national, provincial and local government
agencies across the globe have awakened to the enormous social and
economic advantages of running free software, the proprietary
monopolist is in for a very rough bout of competition. As has already
been shown in the commercial and financial sectors, once machines have
been converted to free software, they never go back to running a
proprietary operating system, and they aren't candidates for the
installation of a proprietary office suite, either, much less
subscription services for automatic updating, which is the new
Microsoft business model. And as government agencies desert the
proprietary supplier of server operating systems, they are also going
to be willing to consider desktop alternatives that corporate users so
far have not widely adopted. Overall, as I've argued before, that
imperils Microsoft's grip on the largest single sector of software
users.

But it is not feasible for Microsoft to argue outright against use of
free software by government agencies. Not even in the US--let alone
elsewhere in the world--will there be serious willingness to
subsidize Microsoft from taxpayer pockets by buying software at
proprietary markups, once officials and legislators realize that
better is available at marginal cost. So Microsoft has been making
two other arguments: first, that government use of free software
shouldn't be required by legislation; and second, that
government shouldn't conduct any research on or publication of
software, or fund any such research or publication by government
contractors and universities, under the GPL. Each of these two
contentions is about less than meets the eye; insubstantial as they
are on their own merits, they are really part of a larger campaign to
achieve indirectly what even Microsoft has not the effrontery to
demand in the light of day.

At first impression, Microsoft has a point about legislation to
prohibit government use of proprietary software. Statutes that would
make free software illegal in the interest of greater protection for
the owners of movie and music copyrights are unacceptable to us, after
all, and it seems just as reasonable for Microsoft or other
proprietary software makers to object to legislation that would
exclude them from the government market.

But the matter is a little less simple than that. It may be bad
policy under certain circumstances, but it is not inherently
objectionable for government agencies to be required to take the
lowest bid on any given contract; and the provider of a Debian-based
fully redistributable system containing only free software, for
example, can reduce the unit cost of software to zero. Government
agencies or legislators can also legitimately decide that
maintainability and extensibility are essential aspects of the
software government acquires, and may therefore specify that fully
modifiable source code must accompany software government buys.
Either of these grounds might legitimately result in legislation or
regulation that would have the effect of making it difficult for
proprietary suppliers to compete effectively against free software for
government contracts.

Microsoft's second contention has been that employment of the GPL in
government-funded research will destroy innovation, by preventing
positive outcomes from government research from being effectively
commercialized. What would have happened, Microsoft asked, if TCP/IP,
or other basic Internet protocols, had been implemented by federal
researchers under the GPL? Apparently we were supposed to believe
that this would somehow have kept the Internet from happening.

Microsoft apparently persuaded several members of the US House of
Representatives of this nonsense earlier this month; led by a
Congressman who has accepted substantial campaign donations from
Microsoft, the group sent a letter to the White House urging adoption
of a policy prohibiting use of the GPL for licensing of software
developed by the US government. The Congressmen and their staffs were
later surprised to realize that copyright law isn't the same as patent
law: if government releases a particular implementation of a good idea
under the GPL, anyone who wants to make proprietary software embodying
the same technology has only to write an original program of his own,
as Microsoft certainly would with respect to the original example of a
TCP/IP or other protocol stack. Then the Congressmen also realized
that in the US there is no copyright in federal government works of
authorship, which Microsoft had apparently overlooked all along, and
the whole anti-GPL campaign fizzled.

These recent Microsoft maneuvers in Washington, DC aren't particularly
adroit, and they haven't been particularly effective. But the real
goal of the campaign remains unmodified: to impede the adoption of the
free software idea by government agencies around the world. As
government switches to free software it ensures greater
interoperability with civil society, invests in human capital by
encouraging its citizens to learn from and improve the software they
use, and saves taxpayers money by getting the best software at the
lowest price. But resistance from the monopoly and its allies in the
proprietary software world will be fierce, and those of us who
understand the values free software represents must be prepared to
explain to legislators, public officials, and other voters why, when
it comes to doing the public's business, Free Software Matters.

*Eben Moglen is professor of law
at Columbia University Law School. He serves without fee as
General Counsel of the Free Software Foundation. You can read
more of his writing at moglen.law.columbia.edu.